Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Saturday, December 30, 2017

Ruminations 77(5): Looking Back on 2017 in Epigrams and Aphorisms

The year 2017 is ending with as great a flourish as 2016, even in the
absence of a U.S. Presidential election to make the world buzz.

2017 is rich with events that expose the complex connections
between law, politics, economics, religion and culture. These events
will set the course for 2018, even as new actors seek to take manage
people, events, states, enterprises and other institutions with
substantial consequential effects of the mass. But most of all 2017
was the year of big data, of social credit, and of the realization that
the algorithmic institution (state or otherwise) might well replace the
regulatory state as the driving force for the management of people,
institutions and behaviors. Where once the regulatory state was said to
express the will of the people refined through their representatives in
government, currently the algorithmic enterprise can be said to build
systems for managing people and institutions from the data it harvests
from them applied to metrics that both reflect their desires and directs
it toward certain ends. But this was also the year of statues, of mass
violence and of surprising revelations that both marked and drove
significant cultural change.

With no objective in particular, this post and a number that follow
provides my summary of the slice of 2017 to which I paid attention through
epigrams and aphorisms. It follows an end of year tradition I started in 2016 (for those see here).

This is Part 5, with a focus on independence referendum, on academic freedom and on big data and social credit as a new technique of political management. Share your own!

1. Some important elements of the global political community appear to share the conviction that certain peoples--the Kurds, the Jews, the Igbo, the Tatars, among others--are inevitably and usefully consigned to the eternal status of minority peoples within multi-ethnic states which are in turn dominated by other peoples; the illegitimacy of their national aspirations is grounded in the necessary subordination of the national drive of these selected peoples to the superior legitimacy of the imperative to operate stable model multi-ethnic states which require, in turn, minorities without nationality. [92% of Iraqi Kurds back independence from Baghdad, election commission says].

2. Self determination as an ideology and objective was the darling of the intellectual and political
classes when it could be directed outward to dismembering of empires and to structuring decolonization; it loses its luster when it can with equal legitimacy be turned inward; at that point the excuses that provided no justification in the past become more compelling in the present. [Once the self determination genie got out of the bottle in the 19th century its application could not be as easily controlled,
and all states, each themselves the products of long historical processes of amalgamations of
jurisdictions, are now fair game fir a theory and political policy
without limit. [Catalan referendum: hundreds injured by Spanish police violence – live; Three myths about Catalonia’s independence movement].

4. In a world of relational political dependencies societal and economic independence is a fantasy, the Cubans and North Koreans serve as a living example of both the realities of relations and the consequences of fantasy backed by power. [US Customs vows to block imports made by North Korea workers ("At a time when North Korea faces sanctions on many exports, the government is sending tens of thousands of workers worldwide, bringing in revenue estimated at anywhere from $200 million to $500 million a year. That could account for a sizable portion of North Korea’s nuclear weapons and missile programs, which South Korea says have cost more than $1 billion."); The Russians are Coming]

5. What is the value of sovereignty in a world where data has no citizenship? ["The UN Special Rapporteur on the right to privacy has submitted independent expert advice to the US Supreme Court in a landmark case. The court is to decide on the validity of a search warrant which requires Microsoft to hand over the entire contents of an email account housed in its data centre located in Ireland. UN privacy expert weighs in on landmark US Supreme Court case on jurisdiction over cloud data]

6. Where academic freedom drifts from the protection of the structures of discourse to the management of a framework for judging its content, [The contents of Academic freedom drifts now from the management of discourse (its dynamic and structural element) to the judgement of content (and in the process eviscerating the freedom of discourse at the heart of academic freedom); this parallels a general trend in global society of all stripes which rejects process management for outcome management, and in the process the choice inherent in discourse--the freedom at the heart of academic freedom, is lost to a judgement that discourse is no more than the performance of orthodoxy (or the orthodoxy of the moment). "“This is not a decision I take lightly,” he wrote in a Facebook post. “However, after nearly a year of harassment by right-wing, white-supremacist media outlets and internet mobs, after death threats and threats of violence directed against me and my family, my situation has become unsustainable. Staying at Drexel in the eye of this storm has become detrimental to my own writing, speaking, and organizing.”" Drexel Professor Whose Charged Tweets Drew Fire From the Right Will Leave the University]

7. An academic freedom--a freedom of inquiry and discourse--that centers on judgment inevitably creates factions whose objective is as much to attack the legitimacy of opposing discourse as it is to advance their own, and it is to that end that law is invoked to protect "legitimate" from "illegitimate" freedom in the academy; in this it resembles the movement of a freedom to engage in political inquiry and discourse in the West. [Where academic freedom, and freedom of speech generally, changes its focus from discourse to judgement, then it no longer makes sense to safeguard discourse (the speaking among people) but rather to champion positive content (speaking that aligns with the judgment of factions engaged in speaking). "In December 2016 the professor tweeted, “All I Want for Christmas Is White Genocide.” Online threats followed, as did a condemnation from Drexel, which called the remarks “inflammatory,” “utterly reprehensible,” and “deeply disturbing,” while also saying they were protected speech. Mr. Ciccariello-Maher has argued that the threats and pushback against his charged statements constitute a “new offensive against academia” by far-right groups. And his case was part of a trend of online attacks against professors’ speech that has prompted some academics to push administrators not to discipline professors when they become the object of internet outrage." Drexel Professor Whose Charged Tweets Drew Fire From the Right Will Leave the University]

8. The freedom of speech in institutions that fear risk more than they value discourse is surely a very small thing, and one cultivated only to enhance stability in a riskless environment. [The changes in the practice and deployment of academic freedom mirrors the changes in the institutions in which speech constitutes an important nominative element; the move from the management of discourse to the judgment of content reflects the changes in the way the educational mission of the university is understood and performed--the riskless university managed through its compliance and finance offices and focused on the production of graduates that can be successfully inserted in wage labor markets is one that itself must shape discourse based on a judgement of acceptable content. "And, of course, with the move toward a corporate model comes the natural
consequences. First there is a tendency to expand the disciplinary
authority of administrators and based on an obedience model. . . Second, there is a move toward the limitation of access to information . . . Related to this is the development of a host of techniques designed to undermine governance even as they appear to enhance it" From
Academy to Enterprise; the Transformation of the University, the View
From the U.K.: Ben R Martin, "What’s happening to our universities?"]

10. The list is now law [Since the time that Caesar Augustus drew up the first of the proscription lists, the power of listing, of ranking, and of certifying has remained the great means for ordering society; it has now become its form as well, for everything from the disciplining business and institutiobns, to the management of the expression of normative rules in the everyday choices of life; The List as Law: CARICOMM, Cuba and the EU's Tax Haven List]

11. The West has come lately to its obsession with China's experiments in management through data and algorithm; the fear is not with the method of governance, for surely Western enterprises have pioneered all of the techniques now looked on with horror; rather it is that China the state has directly assumed the governance role which in the West has been nicely delegated to its enterprises. [Big data reshapes China’s approach to governance ("Most importantly, the “Social Credit System” that is currently being built aims to nudge citizens and companies into rule-abiding behaviour by evaluating data ranging from payment morale or compliance with traffic rules or environmental regulations to opinions voiced in online chatrooms."); In China, a Three-Digit Score Could Dictate Your Place in Society] .

12. Big data management and the managerial use of algorithm is said to threaten the market and market based systems that mark the post 1945 world order; yet it may be more accurate to say that data and algorithm are merely reconstituting robust markets in their own image as in the past century financial markets had done in their time. [One begins to wonder whether data and algorithm driven markets are merely a different expression of the same form, that markets are indeed capable of multiple simultaneous expression--as normative object and as tool; it merely changes the structures within which choices are made and managed; it is a distinct set of techniques for the interaction between supply and demand that at its core is still founded on consent and choice.[Big data reshapes China’s approach to governance; In China, a Three-Digit Score Could Dictate Your Place in Society].

13. The market is a fetish and a ritual expression; to understand a market one must always work backwards from the end goal of societal ideology. [At its base the word means little more than the structuring of exchanges and the framing of systems of demand and supply--the rest is ideology of the allocation of power among the members of a community, each with its own premises about the authority of various actors to exercise discretion, that is, to invoke choice as an object or a weapon, or a technique of management to an ends that is supplied by ideology, or religion, or culture. Thinking about Cuba Suspends New Licenses for Work in Private Sector; and Quyen Nguyen, Internalization Theory and Internal Capital Markets of Multinational Enterprises].

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

The author holds a faculty appointment at Pennsylvania State University. Notice is hereby given that irrespective of that appointment, this blog serves as a purely personal enterprise created to serve as an independent site focusing on issues of general concern to the public. The views and opinions expressed here are those of its author. This site is neither affiliated with nor does it in any way state, reflect, or represent the views of Pennsylvania State University or any of its entities, units or affiliates.

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Springer 2014

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Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.